АХБОРОТ
ТЕХНОЛОГИЯЛАР
ҲУҚУҚИ
♦
INFORMATION TECHNOLOGIES LAW
♦
ПРАВО
ИНФОРМАЦИОННЫХ
ТЕХНОЛОГИЙ
2007
№
4
♦
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
75
I.R. Rustambekov
*
Magistrate of TSIL
LEGAL ASPECTS OF SPAM
IN THE REPUBLIC OF UZBEKISTAN
Everyone receives spam while working on the Internet.
Someone accepts this fact as unavoidable one, and, keep-
ing enviable peace of mind, deletes the incoming corre-
spondence from unknown senders. Someone is growling
out and demonstrates his displeasure to a provider or
sender. There are others, who read carefully every incom-
ing message, thus deriving sometimes a profit for them-
selves. All the persons mentioned above participate in the
specific informational public relation via the Internet and e-
mail using.
First of all, spam — are the electronic messages
posted by sender, but unasked in advance by recipient
('unsolicited' ones)
1
. Secondly, a posting (dispatch) has a
large scale (in foreign countries the term 'bulk' is used to
describe this feature). There are two ways of spam dis-
semination, of which the first is to send a single message
to numerous e-mail addresses, and the second is to send
multiple messages to a single recipient.
Spam message could either contain commercial infor-
mation or be unrelated to commercial activity, depending on
purposes and tasks of a sender (spammer). On basis of the
last feature, i.e. depending on the contents of message, a
'commercial' spam - 'unsolicited commercial e-mail' (general
abbreviation - 'UCE') and a 'non-commercial' spam - 'unso-
licited bulk e-mail' ('UBE') could be discriminated.
E-mailed text can contain 'subject' field describing the
nature of message (for instance, showing that this com-
prises an advertising information). The text (the div) of
message can justify what was the reason for sender's di-
rect address to recipient without preliminary consent, and
specify what the actions the recipient should take to avoid
further receipt of sender's messages. In other words, e-
mail address, Internet resource or the telephone number
(usually it is a toll-free phone number) should be given,
which are designated for unsubscribing (cancellation of
subscription) from unsolicited information (this feature is
currently described by the term 'opt-out').
The specified features (indication in 'Subject' field and
availability of unsubscribing option) evidence that a sender
suggests the information, offered by him, to be obtrusive
for recipients, and that he is bona fide trying to reduce
probable negative influence. However, quite often a
spammer has no desire to reduce discomfort caused by
spam. Moreover, he does not assume responsibility for his
actions, falsifying the sender's address, using a third per-
son address, and falsifying headings of messages by
means of specialized software.
This choice is a deliberate one aimed to hinder those
fighting spam on the Internet from identifying the sender's
personality and taking appropriate measures against the
latter.
*
About the author: www.infolaw.uz
1
This section does not cover the matter of e-mail status as an
element of the institute of personal data and of possibility to use
the latter in civil circulation without permission of its owner.
Why they are fighting spam? Firstly, because e-mail
users have to pay the providers for the time (traffic) spent
for receiving the spam. Secondly, the bulk distribution of
spam is hampering operation of the information systems
and resources, ultimately creating an idle load for them.
Thirdly, spam often contains misleading information and
pursues unfair or illegal purposes. Whilst the first and the
last negative consequences of spam could be hardly esti-
mated, the second one is the most obvious for providers,
whose systems and resources are the instruments for
unsolicited correspondence sending and receiving
2
.
Providers are capable of setting up their systems and
resources against spam, thus making the greatest contri-
bution to such fight. In the meantime, clients of the provid-
ers can also fight spam by complaining of difficult life or
accordingly setting up their own client's software, al-
though, such actions are less effective.
To fight spam, providers primarily use such methods
as filtration (selection and deletion of messages) and
blocking (identification and refusal of receiving the mes-
sages). They also join each other using self-regulation
techniques, and taking joint technical-organizational
measures to enhance efficiency of fighting bulk e-mails
and spammers.
While realizing the danger of spam, some countries
adopted the Acts aimed at restriction or prohibition of un-
solicited bulk mailing of either commercial or non-
commercial contents.
Up to the date, no adequate and balanced approach to
development of special rules regulating bulk e-mail has
emerged in our Republic. Quite a few bills proposed for
last years with respect to the Internet and electronic com-
merce stipulate different approaches to regulation of dis-
tribution and receiving of unsolicited information.
The following technical maintenance of spam spread-
ing shall also be inadmissible:
—
purposive scanning of contents of the information
resources, aimed at gathering of e-mail addresses, and
other delivery services;
—
distribution of a software designated for spam
spreading;
—
creation, verification, maintenance or distribution of
databases of addresses of e-mail or other delivery ser-
vices,(except for the case all owners of the addresses
included in such a database in an explicit form have
agreed to include their addresses in this specific data-
base);
—
open publication of an address can not be consid-
ered by such a consent.
For the lack of direct rules, let us analyze a considered
public relation, associated with bulk mailing in terms of cur-
rent legislation of the Republic of Uzbekistan, which, as men-
tioned above, yet contain no one subjective rule targeted
either to protection of interests of senders, addressees of bulk
mailings, or providers (operators of communication).
According to Article 29 of the Constitution of our Re-
public, persons have the right of free distribution (trans-
mission) of the information. In the relation at issue the
2
In particular, we couldn’t display economic calculations of the
damage of recipients of spam in the Internet in different countries.
АХБОРОТ
ТЕХНОЛОГИЯЛАР
ҲУҚУҚИ
♦
INFORMATION TECHNOLOGIES LAW
♦
ПРАВО
ИНФОРМАЦИОННЫХ
ТЕХНОЛОГИЙ
2007
№
4
♦
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
76
distribution of information becomes feasible owing to
granted communication services, namely, an e-mail ser-
vice
1
. A specified service shall be rendered to recipients
by operators of communication within the framework of
civil relations on a contractual basis, and its quality is to be
stipulated by the standards, technical norms, certificates,
terms and conditions of the contracts for rendering ser-
vices of communication.
Accordingly, a person involved with bulk mailings, in
overwhelming majority of cases is under the contract with
an operator of communication.
Generally, compliance with legislation of the Republic
of Uzbekistan or ban from the actions classified as spam,
could be stipulated by the specified contracts. The cate-
gory of spam shall be interpreted in the contract either as
'commercial' (UCE), or 'usual' spam (UBE). Sometimes
this notion is not interpreted.
After the bulk mailing exercised a provider can (simpli-
fying the situation) either to announce of unilateral cancel-
lation of the contract or to ignore spam and not to cancel
the contract.
In case of bulk-mailed advertising the provider's posi-
tion can be strengthened by the following argumentation.
First, realization of a spammer's constitutional right of
free dissemination of the information does not formally and
automatically entail the occurrence of other users' duty to
obtain information in the form of spam (these is so-called
consensual communications).
Moreover, exercising of the mentioned right could be
considered as abuse of right.
Secondly, spammer's actions cause material losses to
a provider and users. therefore in compliance with Article
985 on general bases of the responsibility for causing
harm, the same should be compensated for.
It is quite important that after stop rendering e-mail
services to spammer by the communication operator initia-
tive, the latter as well as other providers are tempting to
enter a spammer to a peculiar 'black list' and further refuse
him of services.
If an operator of communication does not desire to put
pressure upon a user-spammer, other operators of commu-
nication often start acting, whose users receive spammer's
mailings, or those informed of mailings by third parties.
Generally, the specified persons use in such a situa-
tion blocking and filtration of post messages mentioned
above. The given actions are carried out with the good
purpose to guarantee interests of clients.
Firstly, these actions lead to loss of connectivity of
public communication networks, thereby contradicting the
principle of freedom of transfer of message via networks
and means of telecommunication.
Secondly, what is very important, the clients of the opera-
tor of communication are not informed of taken measures.
In contrast to USA and some other States, in the Re-
public of Uzbekistan there is neither certain legal regula-
tion nor a subjective court practice in terms of spam.
Therefore, in the current situation, when real necessity is
to impose restrictions to spam, while not infringing the
1
Law of the RUz "About connection". 13.01.1992. N 512-XII // ILS
"Norma".
rights either of spammers or Internet users, it seems to be
rational to focus primarily on economic instruments affect-
ing the spam phenomenon. As I see it, those should be
reflected by actions of operators of communication, their
economic policy and a contractual basis. Moreover, such
basis should detail the prohibiting principles of falsifying
the data concerning e-mail sender, solution of a judicial
issue, as well as proving of evidences, when disputes oc-
cur in connection with the fact per se and with the mode of
spam distribution. It seems to be necessary to bind an
operator of communication with the duties to provide the
clients with the information concerning provider's policy
concerning spam and particular actions targeted to imple-
menting of such a policy.
As long as the majority of unsolicited letters are ad-
dressed to national users from abroad, the participation of
Uzbekistan in the development and subsequent adoption
of the appropriate international agreements dealing with
the subjective rules regulating distribution of spam and
public information as a whole is necessary.
Резюме
В
статье
рассматривается
вопрос
о
новых
Интер
-
нет
отношениях
связанных
со
спамом
,
то
есть
отно
-
шения
связанные
с
получением
незапрашиваемых
получателем
электронных
писем
.
Автор
с
разных
точек
зрения
рассматривает
отно
-
шения
связанные
со
спамом
и
их
отправителями
спаммерами
.
В
статье
рассмотрены
к
чему
приводят
рассылки
спама
и
какие
последствия
они
влекут
за
собой
.
Также
в
статье
рассматривается
вопрос
урегу
-
лирования
отношений
связанных
со
спамом
в
других
странах
.
Изучая
данную
тему
,
автор
предлагает
принять
но
-
вые
законы
,
которые
будут
непосредственно
регулиро
-
вать
отношения
связанные
со
спамом
или
же
незакон
-
ными
рассылками
и
будут
защищать
права
пользовате
-
лей
Интернетом
,
электронной
почтой
в
сети
Интернет
.
